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2015 DIGILAW 46 (GAU)

Aswini Kumar Das @ Aswini Das v. State of Assam

2015-01-20

T.VAIPHEI

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JUDGMENT AND ORDER : T. Vaiphei, J. In this writ petition, the petitioner, who claims to be a school teacher under the Bodo Territorial Council, is seeking payment of salary from July, 2006, when it was stopped abruptly by the BTC. 2. The case of the petitioner is that pursuant to the advertisement issued by the Director of Elementary Education, Assam, in the year 1999, he applied for the post of Assistant Teacher of LP/ME/MV/MEM, etc. He was selected for the post by the Sub-Divisional Advisory Board, B.A.C. Where after the Deputy Inspector of Schools, Nalbari vide his order dated 4-12-1999 appointed him as stipendiary Assistant Teacher and posted him at No. 1 Kawli L.P. School. He joined the post on 6-12-1999. He was subsequently transferred to No. 2 Bhehbari L.P. School under Baksa Mushalpur Block vide the order dated 31-12-2005 by the Deputy Inspector of Schools, Nalbari. He joined the post in the month of January, 2006. He received his salary up to the month of June, 2006, but from July 2006, no salary has been paid to him till now even though he has since then been discharging his duty at No. 2 Beharbari L.P. School. It is also the case of the petitioner that the respondent authorities opened GPF account in his name in the year 2004 and deducted his subscription from his salary. A number of representations have been made before the respondent authorities for releasing his salary from July, 2006, but without any positive response from them which prompted him to file this writ petition. 3. The writ petition is opposed by the respondent authorities, who filed their affidavit-in-opposition through the Director of Education, BTC (respondent 3). The answering respondents refute the case of the petitioner that he was ever appointed as Assistant Teacher of No. 1 Kawli L.P. School and assert that there is no record of any advertisement published by the respondent authority inviting application from interested person to fill up the posts of Assistant Teacher or of receiving any such applications or call letters issued by the competent authority. It is pointed out by the answering respondents that the petitioner was given a regular time scale of pay by the Deputy Inspector of Schools, Nalbari against one vacancy of Haricharan Deka under Kadamtala L.P. School, which clearly shows that the appointment order was issued illegally. It is pointed out by the answering respondents that the petitioner was given a regular time scale of pay by the Deputy Inspector of Schools, Nalbari against one vacancy of Haricharan Deka under Kadamtala L.P. School, which clearly shows that the appointment order was issued illegally. It is also pointed out that the appointments made under OBB Scheme were allowed to draw a regular pay scale only in 2009-10 in compliance with the orders of this Court. The petitioner was shown to be transferred with post to BTC area by the Deputy Inspector of Schools, Nalbari but an incumbent cannot be transferred with post. In the year 2006, financial powers were devolved upon BTC for disbursement of salary, but, on enquiry, it was found that a large number of teachers were working against non-sanctioned and non-existent posts and, in spite of this, were claiming salary. The BTC immediately stopped payment of salaries to all such appointees and took steps to terminate them from service. Furthermore, the last pay certificate annexed by the petitioner at Annexure-9 indicates that he received his salary only up to 31-12-2005 and not up to July, 2006. The petitioner is unable to substantiate his claim by any documents. His writ petition also suffers from laches as he approached this Court only after 6 long years and is, therefore, liable to be dismissed. An additional affidavit was filed by the respondent No. 3 enclosing the certificate dated 12-10-2012 issued by one Panchachandra Das, the Head Teacher of No. 2 Beharbari L.P. School certifying that no other teacher is working in his school and that no certificate had been issued by him to indicate that any other teacher is working in that school. To rebut the contents of the additional affidavit filed by the respondent No. 3, the petitioner also filed another affidavit enclosing the certificate issued by the same Teacher certifying that the petitioner has been working as Teacher at his school since 2006 and that he requested the respondent authorities to release his salary. 4. Both Mr. T.C. Chutia, the learned counsel for the petitioner, and Mr. A.K. Bhuiyan, the learned standing counsel for the BTC, have been heard at some length. 4. Both Mr. T.C. Chutia, the learned counsel for the petitioner, and Mr. A.K. Bhuiyan, the learned standing counsel for the BTC, have been heard at some length. In my opinion, the writ petition is liable to be dismissed on two counts, namely, (i) there are disputed questions of fact and (ii) there is inordinate delay in filing the writ petition without any explanation of the delay worth the name. In the light of the stance taken by the answering respondents that no advertisement inviting applications for the posts of Assistant Teacher was ever issued and the absence of any documentary evidence to prove that the existence of select list, etc., the onus of proof has shifted to the petitioner. The petitioner must prove his case and will succeed only on the strength of his case and not on the weakness of his opponents. When the school in which the petitioner was alleged to have been appointed admittedly situated within BTC area, the Director of Elementary Education, Assam could not have directed the appointment of the petitioner for such a school in the year 2000. It is interesting to note that the Head Teacher of the school issued two contradictory certificates on the working of the petitioner at the same school! In this way, it is difficult to determine as to whether the petitioner was ever appointed as Assistant Teacher of the school. The dispute raised by the petitioner is quite complicated and serious, and not one which can be decided on the basis of unimpeachable documentary evidence or affidavit. It is a settled proposition of law that the writ jurisdiction of this Court under Article 226 of the Constitution can be invoked to enforce an established right and not to establish a right. Under the circumstances, the writ petition cannot be entertained by this Court and is liable to be dismissed on the ground of non-maintainability. 5. That apart, the petitioner is guilty of laches by filing the writ petition some six long years after the cause of action arose. There is absolutely no explanation, much less, satisfactory explanation, for the inordinate delay in approaching this Court after six years. Repeated representations do not extend the cause of action. 5. That apart, the petitioner is guilty of laches by filing the writ petition some six long years after the cause of action arose. There is absolutely no explanation, much less, satisfactory explanation, for the inordinate delay in approaching this Court after six years. Repeated representations do not extend the cause of action. It is true that sometimes claim to salary, current and past, may give rise to recurring cause of action but it may still warrant dismissal on the ground of unexplained and inordinate delay.? See State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 (a case law relied on by the standing counsel for BTC). Moreover, when the petitioner has failed to establish even a prima facie case about the legality of his appointment, the inordinate delay in filing the writ petition can have a decisive role in not entertaining the writ petition. Considering the matter from all angles, I am of the view that this writ petition is not maintainable. 6. The net result of the forgoing discussion is that this writ petition is not maintainable and is, therefore, dismissed. The parties are, however, directed to bear their respective costs.